Post-ruling path for WOTUS challenges clear as mud

By Tiffany Stecker, Jeremy P. Jacobs | 02/23/2016 01:00 PM EST

A federal appeals court panel’s narrow ruling for keeping arguments on the Obama administration’s contentious Clean Water Rule at the appellate level put to rest a lingering question on court jurisdiction — for now.

Correction appended.

A federal appeals court panel’s narrow ruling for keeping arguments on the Obama administration’s contentious Clean Water Rule at the appellate level put to rest a lingering question on court jurisdiction — for now.

The 6th U.S. Circuit Court of Appeals in Cincinnati issued a 2-1 decision yesterday to proceed with challenges in appeals court, and not in district courts spread around the country (Greenwire, Feb. 22).


The three-judge panel split in an odd way, with Judge David McKeague, a Republican appointee, siding with the government based in part on its arguments.

Judge Richard Griffin, another Republican appointee, disagreed with U.S. EPA’s and the Army Corps’ intentions but said he was bound to back McKeague’s judgment by the 6th Circuit’s 2009 ruling in National Cotton Council v. EPA, a case concerning permitting for spraying pesticides.

"Were it not for National Cotton, I would grant the motions to dismiss," Griffin wrote, referring to the challengers’ motions to move the case out of the appeals court and back down to district courts.

And the third judge, Damon Keith, a Democratic appointee, disagreed with both judges. He said that he would rule against the government and that National Cotton was not a controlling precedent for the jurisdiction issue presented in the current case.

Attorneys cautioned that this may not be the final word on the jurisdiction question at the 6th Circuit.

Peter Prows, a San Francisco attorney specializing in the Clean Water Act, said that split could make it more likely that the challengers will ask the 6th Circuit to review the case en banc, meaning before a larger panel of judges.

"The panel felt constrained by an earlier 6th Circuit case that two of the judges thought was wrongly decided," said Prows, who works at the firm Briscoe Ivester & Bazel.

It typically takes an en banc panel to overturn or clarify a circuit precedent. So the judges voicing their concerns about the holding in National Cotton "potentially sets this up for an en banc panel to come out the other way and send the cases back to the district courts."

Challengers would need to petition the court within 45 days of the decision for an en banc review, but it’s likely they will file well before that deadline, according to lawyers involved in the case.

Observers are also watching the 11th U.S. Circuit Court of Appeals in Atlanta for a reaction to yesterday’s decision. The court was set to hear arguments today on the same narrow question as the 6th Circuit but canceled the hearing last week pending the Cincinnati appeals court’s decision. An en banc review might delay the 11th Circuit’s moves.

State, industry and agriculture interests have filed challenges to the EPA-Army Corps jurisdictional rule, better known as the Waters of the U.S. rule, or WOTUS, in several district courts scattered across the United States.

These petitioners argue that these cases should be considered by local district courts first.

The rule, finalized last year, seeks to define which streams and wetlands receive automatic protection under the Clean Water Act.

The 6th Circuit placed the rule on hold last fall pending a decision on legal jurisdiction. That stay remains in place, according to yesterday’s ruling.

The decision marks a procedural win for the Obama administration. Department of Justice attorneys asked the panel in oral arguments to keep the challenges at the appeals court level, given the broad applicability of the water rule across the United States.

Legal experts differ on how the ruling will affect cases on the ground, particularly for a North Dakota district court challenge to the regulation.

Most of the challenges to the Clean Water Rule filed in district court have been thrown out or placed on hold. Only one judge, U.S. District Court Chief Judge Ralph Erickson for the District of North Dakota, is proceeding with the case regardless of the appeals court’s ruling.

North Dakota Attorney General Wayne Stenehjem (R) is reviewing the case, spokeswoman Liz Brocker said.

Pat Parenteau, a professor at Vermont Law School, says the case will likely be dismissed in light of the 6th Circuit decision.

"There’s no jurisdiction in the district court," said Parenteau, adding that a district court route would only be appropriate if there were no other "adequate remedy in a court" under the Administrative Procedure Act.

But Larry Liebesman, a senior adviser at consulting firm Dawson and Associates, disagrees, saying the 6th Circuit decision only affects district courts in four states: Kentucky, Michigan, Ohio and Tennessee.

"As of right now, there’s nothing here that would block them from proceeding ahead," Liebesman said of the North Dakota case.

Correction: This story has been updated to reflect the number of days challengers have to file a petition for en banc review.